Article by: Thomas Barrett
On 24 September 2019, the European Court of Justice overturned the EU Council decision extending the freezing of former President Victor Yanukovych assets from the 5 March 2018 to the 4 of March 2019. It did so mainly because the Court found that the European Council’s decision breached Yanukovych’s fundamental rights. Russian and some Ukrainian media – for example, Interfax Ukraine – were quick to report this news, with many quoting Yanukovych’s perspective as articulated by his spokesman Yuriy Kirasir:
“The decision of the European Court dated 24 September 2019 on the lifting of sanctions against former President of Ukraine Viktor Yanukovych for 2018-2019 is a confirmation of the illegality and groundlessness of their introduction by EU authorities and a weighty reason for their speedy complete lifting and rehabilitation of Viktor Yanukovych as a person unjustly suffered from political persecution both in Ukraine and in the European Union.”
On the surface, this seems like a major embarrassment for the EU, and will no doubt infuriate those Ukrainians who are already convinced of Yanukovych’s complicity in criminality. However, they fail to report one key detail – restrictive measures remain in place. After Yanukovych began his legal battle, the Council revised the decision to meet Yanukovych’s complaints and, in effect, to comply with EU law if it turned out they had not already done so. So is this all a lot of fuss over nothing? On the contrary, it reveals one key aspect of EU foreign policy and the EU-Ukraine relationship.
How did the EU restrictions breach fundamental rights? Ever since the decision in Kadi v the Commission in 2008, the EU has been obliged to respect the fundamental rights enshrined in the EU legal order, even if they conflict with the EU foreign policy or international law. In the Kadi case, the ECJ decided that even a United Nations Security Council regulation cannot be enforced if it breaches EU fundamental rights.
Two of these fundamental rights are the right of defense and the right to effective judicial protection. In the Yanukovych case, the court decided that these rights had been infringed. This seems strange, given his reputation for criminality, human rights abuses and embezzlement – most notably the actions of police snipers against the Maidan protesters in February 2014 when he was in office. The Yanukovych decision contrasts starkly with the case of the Russian journalist Dmitry Kiselev who was added to the asset freezing list as a result of his journalistic activities and failed to have his listing annulled on the basis that it offended his fundamental right to freedom of expression. In the Kiselev case, the ECJ decided that the Kiselev’s role in the dissemination of Russian propaganda supporting the intervention in Ukraine justified the restrictions.
In the Yanukovych case, the Council purported to justify the restrictions on the basis of the ongoing investigation by the Ukrainian authorities into Yanukovych, his former Prime Minister Azarov and their associates. They did this as a symbol of solidarity, confidence, and cooperation with the post-Yanukovych Ukrainian government. The idea was to support the Ukrainians in pursuing their own judicial procedures against Yanukovych, rather than imposing sanctions unilaterally.
This approach was especially relevant in light of the EU-Ukraine Association Agreement which Yanukovych had negotiated but which the new government was quick to sign. The Association Agreement is much more than the trading agreement it is so often characterized as. The preamble lists a set of common values which both parties commit to, and emphasizes “democracy, respect for human rights and fundamental freedoms, and the rule of law” as “essential elements of this Agreement.” In fact, economic benefits such as visa-liberalization and the prospective Deep and Comprehensive Free Trade Agreement are conditional upon Ukraine making progress in securing these common values and adopting a wide range of EU regulatory norms.
So the decision to base the restrictive measures against Yanukovych upon the Ukrainian judicial investigation demonstrated the EU’s confidence that Ukraine would uphold the norms set out in the Association Agreement. That trust was misplaced. The ECJ found that the Council’s justification for extending the freezing of Yanukovych’s assets – based on a few letters from the Prosecutor General’s Office outlining only the fact of the investigation into Yanukovych – was insufficient. According to the jurisprudence of the ECJ if the EU purports to rely on the actions of the judicial authorities of a third country – even one signed up, as Ukraine is, to the EU’s fundamental values – for the purpose of imposing restrictive measures it must nevertheless verify that the fundamental rights of the persons affected are not thereby infringed. In this respect the Council is obliged, in its sanction decision, to state that it has verified compliance by the third country with the EU fundamental rights and state the reasons that support the verification which must provide a sufficiently sound factual basis to justify the verification. In the Yanukovych sanction decision the Council had failed to give the necessary verification, but even if they had done so the information provided by the Prosecutor-General was not a sufficiently sound basis for such a verification.
Chairman of the Verkhovna Rada Committee on Integration of Ukraine with EU Ivanna Klimpush-Tsintsadze was quick to lay the blame on the Prosecutor General’s Office. “Servant of the People” MP and First Deputy Chairman of the Committee on European Integration Vadim Halaychuk promised that reform of the Prosecutor’s Office would defibrillate the investigations. But these responses miss the point. The investigations have to comply with EU fundamental rights: Yanukovych must be accorded a fair and speedy trial with a proper right of defense and full protection for his rights. If this does not happen, sooner or later the sanctions will have to be removed.
The heart of this issue is that the EU’s support for Ukraine is constrained by Ukraine’s compliance with the EU core values it has agreed to comply with the Association Agreement. This goes deeper than simply stating that the EU will lose interest in Ukraine if there is no progress in reforms. The Yanukovych saga shows that the EU is legally bound by its own fundamental values set out in its Treaties when dealing with Ukraine and its citizens – even the ones who are in exile. This should not be interpreted as a sign of weakness. Respect for fundamental rights was a major motivation for the Orange and Maidan Revolutions, and it is an important factor distinguishing the EU from Russia, China, and other unsavory regimes. The Council has been able to reinstate the restrictions on Yanukovych by belatedly complying with European law. Yet Ukraine must remember that the EU partnership is one of give and take. Ukrainian commentators may rightly complain that the EU is not doing enough to help Ukraine in its struggle with Russia. They should remember, however, that the European Union is built around common values rather than money, and that Ukraine must put justice at the core of its system if it is to truly break free of its post-Soviet stagnation.
- Interfax Ukraine, General Court of EU annuls EU sanctions against Viktor Yanukovych – Oleksandr Yanukovych’s spokesperson [https://en.interfax.com.ua/news/general/614890.html] (accessed 27.09.2019)
- Judgement of the General Court (Sixth Chamber), 24th of September 2019, Case T?300/18 [http://curia.europa.eu/juris/document/document.jsf?text=&docid=218110&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=911925] (accessed 27.09.2019)
- Gattini, Andrea. “Joined Cases C–402/05 P & 415/05 P, Yassin Abdullah Kadi, Al Barakaat International Foundation v. Council and Commission, judgment of the Grand Chamber of 3 September 2008, nyr.” Common Market Law Review 46.1 (2009): 213-239.
- Радіо Свобода Україна, Санкції ЄС проти Януковича залишаються чинними – представник України при ЄС [https://www.radiosvoboda.org/a/news-sanktsiji-es-proty-janukovycha-chynni/30181632.html] (accessed 27.09,2019)
Thomas Barrett is a master’s student of Eastern European Studies at the Free University of Berlin and a graduate of the History Faculty of the University of Oxford. He is currently studying for a semester at the National University of Kyiv Mohyla Academy. His research focus is on the political economy of Ukraine and Georgia. He has taken part in numerous research projects in Ukraine and was a committee member of the Oxford University Ukrainian Society.</div